Category: Events & Panel Discussions

As a soft IP lawyer, I want to highlight two events that have caught my fancy –

(I) Remixes, First Sale, and Statutory Damages: A Presentation of the U.S. Patent & Trademark Office :

The Copyright Society of the U.S.A. is organizing this presentation where Shira Perlmutter, Chief Policy Officer and Director for International Affairs at the U.S. Patent and Trademark Office will present the findings and recommendations of the recently published White Paper on Remixes, First Sale, and Statutory Damages by the U.S. Department of Commerce’s Internet Policy Task Force.

The CSUSA presentation will not be recorded and I’ll be unable to attend it due to a clash. However, the webcast of the WIPO Conference shall be webcasted and I’ll run though the transcript for the benefit of all readers. I’m actually pretty kicked about the WIPO Conference given the impressive credentials of the panelists.

In some of my previous posts (see here and here), I’ve mentioned about my keen interest in the jurisprudential and constitutional underpinnings of IP. Hence, I made a sincere attempt to decipher many of the issues by listening to the podcast thrice ( Absolutely no exaggeration! Prof.Epstein’s portion of the discussion is particularly intriguing to my not – so – sharpened interdisciplinary approach to IP).

The panel debated on the divide between conservatives and libertarians on the conception of IP. Essentially, they probed into the fundamental question of whether IP was akin to real property? The constitutional underpinnings of IP protection were also deliberated upon.

For the sake of brevity, I’ll not delve into every argument raised. Only pertinent issues are highlighted. (Those interested can contact me for the complete transcript of the discussion).

The discussion progressed by Harper taking a different approach to these issues, not as an IP lawyer but as an Information Policy Practitioner . It succeeded with Eli Dourado aligning with Jeremy Benthams’s utilitarian approach to IP. Rebuttals followed by Q & A session concluded the discussion.

Randolph May’s Arguments

May, by way of reference to his book made a case that the founders of the American Constitution accepted the applicability of Lockean Theory of Property to IP. This was based on four conditional premises, which according to him influenced the Founders –

(I) Each person had the fundamental right to enjoy the fruits of his/her labor including IP.

Further, he pointed out that the Founders imbibed Locke’s view that the Government’s primary purpose was to protect a person’s property including IP. He made a cursory reference to Noah Webster’s , James Madison’s and Abraham Lincoln’s views on property and it’s clout on the final version of the Progress Clause.

Remarks on post – constitutional developments and sub – war era were also made. He concluded by stating that the intellectual, constitutional and historical background viewed copyrights and trademarks as natural rights.

Professor Epstein’s Arguments

What happens when one of the most frequently cited legal scholars is debating on a seemingly complex topic? You try to grapple with your ignorance by listening to his portion of the podcast thrice and still end up muddying the waters. Hence, I urge all readers to exercise caution while relying upon my interpretation of his arguments.

Following arguments are noteworthy –

(I) He was a sympathetic critique to May’s ( fondly addressed as Randy) natural rights underpinnings to the Progress Clause. For him, it was a matter of political construct rather than a natural one.

(IV) He was of the opinion that modern IP policy was flawed on grounds of long duration of protection.

He concluded by stating that a strong property rights system with an appropriate duration was more important as it led to reduced rents and genuine innovation. Further, IP in many ways worked better than physical property. To substantiate this, he drew a parallel between IP and real (physical) property.

Jim Harper’s Arguments

Though trained in IP law, Harper’s approached these issues as an Information Policy Practitioner, which was a breath of fresh air. Apart from his thought provoking anecdote on the stray mitten, following pertinent points were made –

(I) His approval of IP as a concept, possibly emanating from his pro – property rights approach. Though he distinguished between IP and real property.

(II) Transposing the property law concept of “abandonment” to IP. While real property was seldom abandoned, abandonment of IP was a common phenomenon.

(III) There was a goal setting problem in IP as the dividends flowing from it were not easy to determine.

(IV) Non – homicidal nature of IP made it’s protection to many irrational.

He concluded by stating that while protection for real property was visible, same was not true for all forms of IP. Further, he called for IP protection for personal information.

Eli Dourado’s Arguments

Being a libertarian and as an ardent follower of Eli’s work, it is always a lucullan bliss to hear him. To my delight, my prognostication of his arguments were true. Following points were noteworthy –

(I) Aligning with Jeremy Bentham, he stated that IP was deep rooted in libertarian principles.

(II) Congress was not obligated to protect IP under the Progress Clause. It was a discretionary power.

(v) He lambasted at the role of the Patent Bar in lobbying for the creation of Court of Appeals for the Federal Circuit. This according to him was an epitome of maneuvering the political system in favor of corporate interests. Further, more than half of patents granted in recent years were software related, which was in sharp contrast to Supreme Court precedents. (For more on this, read his essay here).

He concluded by stating that the judicial decisions had been severely manipulated in favor of IP owners.

CONCLUSION :

A yet another enlightening discussion on one of my emerging areas of interest. No formal announcement in whose favor the debate tilted was made. However, due to my political affiliation and as Eli’s fan, I personally align to his position that strong IP protection was not necessarily innovation inducing.

May’s argument is a motivator for me to read his book ( I’ve already ordered my copy! ). Prof. Epstein’s awe inspiring colloquy got my grey cells working really hard (after a long time I must admit! ). And Harper’s out – of – box approach to these issues combined with witty anecdotes were music to my ears.

Overall, a healthy discussion and not worth missing particularly for those interested in the politics of IP. A piece of advice, “listen to the podcast when time is an article of abundance and when grey cells are at their active best.”

Share this:

Like this:

As they say, better late than never. The unusual delay in posting this piece is attributable to my ill – health stemming from extensive travel while I was at my home turf and landing amidst Snowzilla ( I was in India for almost three weeks in January after more than a year).

Hence, could there be a better timing than the commencement of the Year of the Monkey to syncopate this deafening silence on my part. Little did I know that my inability to wish the readers a Happy New Year as per the Gregorian calendar was paving the path for me to wish all of you Gong Xi Fa Cai! May the Monkey be an epitome of vitality, prosperity and success for all.

On this occasion, I also want to thank each one of you for your unflinching support to my blogging endeavour. A special thanks to my Philadelphian cousin Terence Tuhinanshu, who not only inspired me to blog but being the dreamer – writer sorts also took upon himself to review my writing ( To know what does it mean to write like a dream, visit his blog).

I’m also grateful to Dr. Amal Punchihewa for his timely encouragement and words of advise, Pratik Sanwaria for giving suggestions on topics to cover, Mario Zuniga, Andras Jokuti and friends back in India for their valuable inputs on improving the blog. Last but not the least my parents who have always held a steadfast belief in my goals.

On the first day of the Chinese Lunar Calendar, I also make a solemn New Year resolution of writing atleast three quality posts every month. While I would ideally want to stick to my previous promise of weekly posts, with a deluge of professional and scholarly commitments, it seems far fetched.

Today, I shall not delve into anything elaborate. For the benefit of readers, I want to highlight two upcoming events which have caught my fancy –

The Cato Institute’s Center for Constitutional Studies and the Federalist Society for Law & Public Policy Studies is organising a panel discussion on how libertarians and conservatives conceive intellectual property. The panel discussion seeks to delve into the question,whether intellectual property was akin to really property in the sense of conferring a natural right upon the owner or was it a government conferred monopoly impeding innovation.

The discussion will be held at Hayek Auditorium on February 10th, 2016 from 11.00 A.M. to 1.00 P.M. Prior registration to the event is imperative. For those who can’t attend, the event will be live webcast.

By now, many of you may be aware of my keen interest in this topic, which essentially goes to the jurisprudential roots of IP protection. I see this topic as an extension of the conversation which took place in one of the panel discussion’s organised by the R Street Institute and Reason in October last year. For an extensive coverage on that discussion, see my post here.

Given my keen interest in the topic (to the extent that I’ve been researching independently on the topic and deliberating upon writing a paper on it), I’ll be attending the event and doing an extensive commentary and coverage on it. Watch out for the next post on my views on the discussion.

The World Intellectual Property Organization (WIPO) is organizing an International Conference on Intellectual Property and Development on April 7 and April 8, 2016 in Geneva. Prior registration for the Conference is imperative. For those who can’t attend ( I’m on the list. I will not possibly travel to Geneva to attend one Conference even though the topic is of immense interest to me!) , the conference will be live webcast from April 7, 9 : 00 a.m. Geneva time ( Unfortunately, the link to the live webcast is not yet available. I’ll post it as soon as I find about it).

The Conference seeks to delve into the seemingly debatable issue of role of IP in development. What strikes me most about this Conference is it’s wide range of discourse on the influence of IP on development. Traditionally, I’ve mostly attended or have read about the role of IP in social and economic development (most of the panel discussions that I’ve attended in Washington D.C. revolve on the interplay of IP with economic development). Hence, it’ll be interesting to hear about the role of IP in cultural development.

The agenda for the Conference also states some interesting case studies that will be presented to demonstrate the role of IP on the three facets of development, ” economic, social and cultural.” Given my interest in Traditional Knowledge (TK) and Traditional Cultural Expressions (TCE), I’m particularly keen to hear about the ” From the heart – Moldovan brands” , ” Jamaican jerk seasoning” and the ” Amouage luxury perfumes” case studies. I want to be able to gauge their interrelationship (if any) to TK and TCE.

Needless to say, I’ll be watching the entire live webcast and doing an extensive coverage and commentary on the same.

Dear enthusiastic IP lawyers in and around Washington metropolitan area, the beautiful fall months of October and November are brimming with events and panel discussions – specifically centered on copyright law. Hence, mark your calendar and suit up for the following – (Being a soft IP lawyer, I do not keep a track of patent centric events, hence sincere apologies for not highlighting them. However, if some of you want to take a lead, you are more than welcome to do so.)

G.W. Law Alumni Reception during AIPLA

Description : Associate Dean of Intellectual Property John Whealan invites G.W. alumni, and their guests for a complimentary reception with faculty during the American Intellectual Property Association (AIPLA) Annual Meeting.

Copyright & Fair Use Panel Discussion at GW Law : The Lenz Decision & the rationale of Shared Responsibility under DMCA

Description : In light of the recent Ninth Circuit’s decision in Dancing Baby v. Prince (See my post here), G.W. Law and the DC Chapter of Copyright Society is co-hosting a panel discussion focusing on whether and how this recent decision fits with the Congress’s intent for copyright owners and internet service providers for addressing online intellectual property theft.

Seldom do you imagine a slumberous mid – week late afternoon leading to desultory facebook browsing to be a fruitful endeavour. A cursory glance at the G.W. LL.M. group rapts my attention, for I see the words ” libertarians” and “intellectual property” in close proximity to each other (you needn’t guess my pause at the word “intellectual property“, however “libertarianism” apart from sounding music to my ears is also my dominant political and philosophical thought). Hence, the two combined together and my ecstasy knew no bounds. Also, lately apart from reading, thinking and writing on the jurisprudence of copyright law, I have been vehemently opposing an overtly protectionist copyright regime (for people interested, please read my comments to David Newhoff’s blogpost, which by the way is an excellent piece. Just to be clear, I am not an abolitionist).

The broader issue that the panel sought to delve into was the concept of intellectual property from a libertarian perspective. The primer to the panel discussion and the ensuing question and answer session is as follows –

(It is pertinent to note that only the primary issues have been highlighted. Complete transcript of the panel discussion can be obtained by contacting the author at ssharma2@law.gwu.edu).

DISCUSSION

Issue 1: Nature of Intellectual Property – Real or regular property?

In light of the Progress Clause of the U.S. Constitution, Nick raised the issue to Eli, which goes at the crux of protecting intellectual property, Was intellectual property akin to real or regular property? Or essentially, was the Lockean theory of property applicable to IP. Eli argued that as an average guy on the street (he is anything but average!), there was a need to protect IP as any other real property (land), for rewarding labour expended on creation of a work.

My understanding of his statement is that he was aligning (if not advocating) for a “sweat of the brow“ rationale for protecting all forms of IP (patents, copyright and trademarks). Just to clarify, the “sweat of the brow” doctrine is a copyright concept and is inapplicable to patent law.

Nick raised the issue of the ever expansive copyright term and what it meant for the innovation industry. He set-forth that at the inception of the U.S.Constitution, copyright vested in original works for fourteen years. However, the copyright term as it stands to date was – life of the author + seventy years. Sasha was swift to address the issue. To my delectation, her response resonated with my own view that lengthy copyright term had a stifling affect on innovation.

Issue 3: Intellectual Property Laws – Indispensable for innovation?

Nick raised the issue of the utilitarian value of intellectual property laws – which is now being increasingly debated upon by legal scholars and economists. How instrumental were intellectual property laws in fueling innovation? To this Brink made a noteworthy point that majority of the inventions were not under patents and that they occurred independently of patents. On this point, the panel was in unison.

(This is also in consonance with Economist’s article titled, “A Question of Utility“. While many have refuted the arguments made in this article, I partially agree that the current state of patent laws are anti-consumer and do not promote innovation. Respectfully, vehement opponents of this article are the pharma lobbyists, for whom patents are nothing but a means to perpetuate their monopoly at the cost of affordable healthcare).

Coming to copyright, Nick and Eli gave the example of Wikipedia – the world’s largest online encyclopedia, to which copyright was totally irrelevant. Even in the absence of copyright protection, Wikipedia was highly successful in widespread dissemination of knowledge. (Just to clarify, Wikipedia operates on an open- source basis, meaning that the content and other media is free of charge).

Eli’s argument hit the nail on the ground when he said that people in general were using copyright for everything apart from protecting original works of art.

Wayne conceded that the existing regime of US intellectual property led to a wealth transfer from developing to developed countries.

Sasha specifically spoke in the context of India that eventually it would align with U.S.’s standards of IP. As an Indian, I found her position preposterous considering that India is already TRIPS compliant and is not compelled to adhere to U.S.’s standards of IP protection. Further, her remarks were particularly interesting given that just two days back Indian judiciary, which has always been accused of bias by the US rendered a decision in favor of Merck – a U.S. based pharmaceutical company. (For the recent Delhi High Court judgement, see Mint – a good read for non-lawyers, Shamnad Basheer’s analysis for lawyers and for the pharma-patent folks, the hundred and thirty three page decision is a blessing in disguise. I have skimmed through the first seventy-five pages of the decision and the chemical composition of the drugs in issue has captured my imagination!)

Issue 5: Piracy – Was it really a big deal?

Now, how can any discussion on IP not touch upon piracy. There was a unanimity amongst the panelists that piracy was not as big an issue as what was made to be one by the Washington D.C. based lobbyists. Eli specifically mentioned that the scale of piracy varied across the three sectors, journalism , video and music.

Further, Brink took a stand that any attempt to curtail private, non-commercial copying would fall hopelessly. (Now this is an important remark especially in light of the recent Ninth Circuit’s decision in Lenz v. Universal. For those interested, my analysis on the same can be found here.)

QUESTION & ANSWER SESSION

As libertarians, each panelist was asked the most pressing IP reform required in the U.S.

Sasha advocated that urgent reforms were required in the realm of statutory damages for copyright infringement. She added that massive damages for innocent acts of non-corporate infringement should be done away with (I really wonder how would the lobbyists react to this. Statutory damages is an extremely sensitive issue to them!).

Eli stressed upon the need for eliminating the US Court of Appeals for the Ninth Circuit since it was dominated by the patent bar. He further conceded that it’s status had become akin to that of the U.S. Supreme Court which severely undermined the hierarchy of judiciary.

Wayne and Brink seconded each other on the need to undo with software and business method patents.

CONCLUDING REMARKS

The panel concluded in unanimity that the premise that innovation was dependent upon a stringent intellectual property regime was a flawed argument and that there were empirical studies to prove the same. This was especially true in the context of copyright, which is the last thing on the minds of true creators and artists.

Now, take the case of Mr. Navros (in the picture), as my friend describes him as a really musicophile boy, do you think that copyright is remotely on his mind while he is in a state of trance playing the flute!

As the Melody Dries by Saturninus

(Image courtesy vests with my dear friend Andras Jokuti – who apart from being a highly astute Intellectual Property lawyer at the Hungarian Intellectual Property Office is also an internationally acclaimed photographer. To all connoisseurs of photography, his online photography exhibition is not worth missing.)

Overall, though very brief, the discussion was healthy and touched upon many pressing issues. As an Indian IP lawyer and given the stand-off between U.S. and India on latter’s IP policy, to my dismay I found the discussion especially in the context of pharma patents very shallow. Hopefully, not too distant in future, there will be an in-depth discourse on U.S’s IP policy vis-a-vis India, amongst the Washingtonian libertarians.

COPYRIGHT POLICY

1. As an ardent supporter of the open access movement, the author does not assert any proprietary rights over the content for lawful non-commercial usage. However, due attribution and appropriate link back to the original content will be appreciated.

2. Due to the mammoth research effort involved in writing a post, usage beyond "fair use" and for "commercial purposes" is strictly prohibited albeit author's express written consent.

3. Users are urged to be mindful of third party proprietary rights in the content (including images, if any). In case of confusion, kindly contact the author at ssharma2@law.gwu.edu for clarification on "third-party rights". Clarification on the meaning of "third-party rights" WILL NOT constitute binding legal advice.